Reply #33: ... however ... we'll just ignore it?

[iverglas]

I would consider such an intruder very dangerous.

And if you have no actual grounds for that consideration, then you would not meet the common law test for self-defence. Seeing the point?

The duty to retreat is not an option to me, as that would expose the other members of my family to danger.

Ah, those buzz phrases. I think you meant "retreat is not an option", not "the duty to retreat is not an option", which doesn't make a stitch of sense.

Once again, do your homework. If "defence of others" is available as an excuse for the use of force, then leaving the scene would not be a reasonable alternative to defending the others in your situation. As long as there was a reasonable belief that harm would come to them otherwise.

I realize that the Florida Castle Doctrine does not offer me the freedom to just shoot anyone who happens to be in the house without fear of legal repercussions.

Really? Unless you intended to leave out the "unlawfully" in "unlawfully in the house", I don't know how you could realize this. Since it's not true. Florida law DOES do exactly that.

If you intended to leave out the "unlawfully" bit, I don't know what your point is.

Why are you citing http://www.snowbirds.org/html/gunlaw.html
as if it were some sort of authority??

This statement from that source:

The Florida law provides that a person, not themselves engaged in an unlawful activity, who is attacked in a place where they have the legal right to be (i.e. a dwelling, residence, occupied vehicle or public place) does not have an obligation to retreat and may meet force with matching comparable force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to him/herself or to another person or to prevent a forcible felony.

is FLAT OUT FALSE.

How many times?

Florida law DOES NOT include any requirement of a reasonable belief that the use of force is necessary, etc. That is THE ENTIRE POINT of the law, and the subject of the various commentary on it I have referred to.

One. More. Time. With my emphases:

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

That IS NOT a requirement of a reasonable belief that the use of force is necessary, etc. It is a NON-REBUTTABLE PRESUMPTION that a person had such a belief, and that presumption may be relied on by anyone who meets the conditions in (a) or (b) even where s/he had NO SUCH BELIEF AT ALL.


And I could point out that Florida is not the only state to enact the Castle Doctrine" law.

You could indeed. Just as I had already pointed out exactly what a Kentucky judge and a Kentucky legal expert thought about the law there.


As for your "Interesting data released today", I have cited a number of cases in the past, in this forum, in which it appeared that the presumption incorporated in Florida and other states' law would make it impossible to prosecute individuals who apparently had no genuine self-defence claim at all. Feel free to look them up.

Here's another expert opinion that reiterates what I have repeatedly said, in quite unmistakable terms (emphases in the original):

http://writ.news.findlaw.com/sebok/20050502.html

Under the old law, a person who killed someone in their home had the burden of proof to show that they were in fear for their safety. Now, all a person has to do is establish that the person they killed was "unlawfully" and "forcibly" entering their home when they shot the victim.

That is because the new creates a presumption that anyone who forcibly and illegally enters a home is intent on threatening the lives of the people within. And, at least according to a report written for the Judiciary Committee of the Florida Senate, that presumption is conclusive; it cannot be rebutted with contrary evidence.

... Under the old law, Lisa would have had to prove not only that Bob was in her home, but also that she was afraid for her life (or the lives of others in the house). In reality, that was often easy to do -- usually juries would take the word of a living homeowner over a dead burglar (even if the burglar was unarmed). But now Lisa, in theory, has a free hand to shoot even a plainly unarmed burglar as to whom he or she, in fact, felt no fear at all.

... It's Not True that the New Law Merely Aligns Florida with Other States

... That is probably more or less true when it comes to the legal standard governing use of deadly force outside the house. But it is very inaccurate when it comes to the legal standard governing killings inside of homes ... . Here, the new law has truly radical effects.

Why? Because the new law bulks up the old "castle" doctrine -- once a reasonable rule of law -- until it is a legal monstrosity: a legal Incredible Hulk.

"A legal monstrosity" ... "a legal Incredible Hulk". I'll bet that author would agree with my characterization as well. "A perversion."